State v. Staylor

• Decision Date: 27 March 1889
• Citation: 17 A. 392,70 Md. 472
• Parties: STATE, TO USE OF STAYLOR ET AL., v. STAYLOR ET AL.
• Court: Maryland Court of Appeals

17 A. 392

70 Md. 472

STATE, TO USE OF STAYLOR ET AL., v. STAYLOR ET AL.

Court of Appeals of Maryland

March 27, 1889

Appeal from Baltimore city court.

Action by the state, to use of Caroline L. Staylor and John Dobler administrators of William A. Staylor, deceased, against Jane Staylor and others. Judgment for defendants, and plaintiffs appeal.

Argued before ALVEY, C.J., and MILLER, BRYAN, STONE, MCSHERRY, and IRVING, JJ.

John Prentiss Poe, S. L. Stockbridge, and John J. Dobler, for appellants.

Arthur W. Machen, J. Wilson Leakin, and John W H. Fry, for appellees.

IRVING J.

The question presented by this appeal is important, as it is one of practice, and liable to arise at any time in the prosecution of suits. Simply but precisely stated, it is whether a plaintiff can, after the court has announced a decision sustaining a demurrer to a pleading which, in effect, defeats the plaintiff's action, and the entry of demurrer sustained has been made on the docket, but has not been followed by formal judgment for the defendant, dismiss or discontinue his suit; and if, having done so, he brings another suit on same cause of action, against the same parties, whether the decision of the court on the demurrer in the former case will sustain a plea of res adjudicata, if nul tiel record is replied. The question arises thus: The appellants, administrators of William A. Staylor, brought suit on the bond of Jane Staylor, administratrix of William A. Staylor, alleging, as a breach, the non-compliance, on the part of Jane Staylor, administratrix of William Staylor, with a decretal order of the circuit court of Baltimore city directing the payment of certain moneys to the plaintiffs. Several pleas were interposed; the fourth being to the effect that in his life-time, and prior to the decree, William A. Staylor had by deed to Jane Staylor transferred to her his interest in the estate of William Staylor, and that she had accordingly, and before suit instituted in the circuit court of Baltimore city, passed an account, and distributed the same, in the orphans' court of Baltimore city, to herself, and thereafter held the same as her own. Several replications to this plea were interposed by the plaintiff, the third of which only is important to mention; and that averred that the deed to her had been vacated, annulled, and set aside, and that the distribution relied on was ex parte, and had been superseded by the decree of the circuit court, which had established the plaintiff's rights to the balance found due them. To this replication defendant demurred, and the court (Judge FISHER) sustained the demurrer; and thereafter, and before any judgment on demurrer in favor of defendants, which never was in fact entered, the plaintiffs in open court dismissed their suit. These proceedings were all had in the superior court of Baltimore city. The demurrer was entered "Sustained" on the 21st December, 1886, and the dismissal of the suit is entered on the 17th of January, 1887.

The suit in which this appeal is taken was instituted in the "Baltimore city court" upon the 9th of April, 1887, against the same defendants, and on same bond. The defendants filed substantially the same pleas. A demurrer to the first and fourth pleas having been sustained, upon leave the defendants filed amended pleas, the seventh of which only is involved on this appeal. That plea is res adjudicata, and sets up the action of the superior court in the former suit, whereby the demurrer to the third replication to the fourth plea was sustained. The plaintiffs replied nul tiel record. Issue was joined and trial had before the court. Upon that issue the Baltimore city court found for the defendants, and gave judgment for them, and hence this appeal.

The record transmitted to this court purports to give the bill of exceptions taken by the plaintiff, and which appears to have been signed by the judge. It contains copies of the original papers and docket entries in the former suit, the oral testimony taken subject to exception, and the opinion of the court upon the question raised on the replication of nul tiel record, and finding upon the record evidence and docket entries that there was such record as concluded the plaintiffs from recovery in their suit. The diminution record brings to us the exemplification of the record of the first suit, which the court in its opinion says was excepted to by the plaintiffs "as being more full than it should have been, and as containing certain entries which are deemed inaccurate," and also a copy of the bill of exceptions as signed by the judge, which is as follows: "At the trial of the issue joined upon the plea of nul tiel record the defendants offered the following record (here insert it,) and the plaintiff offered the following testimony, which was received subject to exception, (here insert it,) and the court, upon considering the evidence, filed the following opinion, (here insert it,) finding the issues in favor of the defendant, to which finding of the court the plaintiff excepted, and prayed the court to sign and seal this its first bill of exceptions, which is accordingly done this 10th day of December, 1888." The appellees insist that there is no such bill of exceptions before the court as to enable the court to consider and to decide the question sought to be raised. The contention is that exception should have been taken and signed as respects the evidence before the decision rendered; and that, as no prayer was offered, there is nothing for the court to review. It is also argued that the docket entries, upon which the appellant bases his contention that there was no judgment upon the demurrer in the former case, are not before the court on this...